Commentary

NCAA goes for sky-will-fall defense

NCAA legal team trying to send message that college sports will die if players paid

Updated: June 13, 2014, 7:01 PM ET
By Lester Munson | ESPN.com

OAKLAND, Calif. -- Echoes of past legal battles over player freedom and broadcast money rang through Courtroom 2 on the fourth floor of the federal courthouse here Friday as the O'Bannon group and the NCAA battled over the impact of paying players.

The NCAA legal team used one of the oldest arguments in all of American sports jurisprudence in its attack -- the parade of horribles. If you pay the players, the NCAA lawyers insist, the sky will fall, and the world will end. They began their parade of doom and gloom Thursday when veteran sports broadcasting consultant Neal Pilson told Judge Claudia Wilken at least three times that paying the players would ruin everything in college sports.

The players' legal team responded quickly Friday with testimony from Daniel Rascher, a sports economics professor at the University of San Francisco, who responded to Pilson with predictions that paying players would be better for everyone. It would increase the number of schools participating in big-time football and basketball, and it would improve the quality of competition.

Division I sports are so profitable, Rascher said, that more and more schools want to move into the division to enjoy the bounty. Demand for college sports would grow if the NCAA's cherished amateur ideal were scrapped and the schools began to pay the players, Rascher said.

To support his argument, Rascher cited the examples of the free tattoo scandal at Ohio State and the Johnny Manziel autographs-for-money incident, both illegal under NCAA guidelines. After these episodes involving unauthorized payments to players, the economist said, the television audiences for Ohio State and for Manziel grew and set records. Payment to players would, therefore, increase the audience for college sports and not destroy it, according to Rascher.

In a demonstration of how deeply the players' legal team has drilled into sports arcana in its search for evidence, attorney Bill Isaacson asked Rascher about the oral arguments before the U.S. Supreme Court in 1984 in a case known as Board of Regents v. NCAA, a case involving telecasts of college football that transformed the college sports landscape. Isaacson somehow knew what the attorney for the NCAA said in these arguments that were made 30 years ago.

The NCAA attorney, Frank Easterbrook, a University of Chicago law professor who is now a judge on the U.S. Court of Appeals for the 7th Circuit in Chicago, admitted in his statements to the nine justices that the market for college football would increase if players were paid. Easterbrook said, according to players' attorney Isaacson, "We would get more viewers with semi-pro players. The demand would be increased."

These statements from an NCAA attorney were not recorded in a written brief. They were offered in response to a question from one of the justices, and the players' lawyers somehow dug it out of the statements for use Friday in what they hope will be another transforming legal case. I have been around courts and lawyers for four decades, and I have rarely seen this level of research and investigation. Michael Hausfeld, the lead attorney for the players, said outside the courtroom that his team has more from the 1984 case against the NCAA.

When it came time to attack Rascher's assertions in cross examination, the NCAA legal team was ready. Rohit Singla confronted Rascher with Rascher's predictions about how payment to players would work. Using the NFL as a model, Rascher -- in his preparations for the trial -- had calculated the amount of broadcast revenue that would be available to pay players if the rules against payment were lifted by a court injunction at the end of the trial.

Singla used the examples of Vanderbilt, a member of the SEC and the beneficiary of a billion-dollar television contract, and Memphis State. If the SEC teams received the same 50 percent of television revenue that NFL teams receive, each SEC team would receive $5.5 million for the season. For 85 scholarship football players, that would be a payment each year of $65,000, or a total over five years of $325,000.

For Memphis State, according to Singla, the 50 percent share of available broadcast income would have each player receive $14,000 for each of five years, a total of $70,000.

The NCAA is clearly hoping that the large sums available to Vanderbilt players will somehow shock Wilken and that the disparity in player income will make the idea of paying players less palatable.

But Rascher also testified that if Wilken issued an injunction that would end the NCAA's rules against paying players, "The schools would make rational decisions on the level of pay. They would not do it in a way that would hurt the school or the team."

Players' attorney Isaacson also led Rascher through the history of free agency in Major League Baseball as an example of the fallacies in the NCAA's sky-is-falling argument. As Marvin Miller led MLB into free agency with collective bargaining and victories in the Andy Messersmith and Dave McNally arbitrations in 1975, the lords of baseball were appalled. Rascher, who studied the history of MLB free agency, described New York Yankees owner George Steinbrenner's observation that free agency "would be the end of baseball."

It is interesting to speculate on levels of pay for players and to project the impact of pay for performance on college sports fans, but it is not one of the central issues of the O'Bannon case.

Both teams of lawyers have clearly devoted huge resources and effort to the various possibilities, but Wilken's decision will be based on the issue of whether the good effects of the NCAA's restraints on player pay outweigh the anticompetitive effects.

The judge may have some interest in what she heard about on Friday about sports law decisions made in 1975 and 1984, but her decision on the future of the NCAA will be based on what the NCAA is doing today and its impact on the athletes.

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